Elsie L Benjamin Individually etc v HEADNOTE Elsie L

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Elsie L Benjamin Individually etc v HEADNOTE Elsie L Powered By Docstoc
					HEADNOTE:     Elsie L. Benjamin, Individually, etc. v. Union
              Carbide Corporation, et al., No. 959, September
              Term, 2004




________________________________________________________________


LIMITATIONS - SURVIVAL AND WRONGFUL DEATH ACTIONS –

     The decedent contracted mesothelioma, an occupational
     disease, and died. The survival action is barred by
     limitations because the decedent was on inquiry notice, and
     thus, the cause of action accrued when he knew he had
     mesothelioma and that he had been exposed to asbestos. The
     action was not filed within the period of limitations. See
     Md. Code (1974, 2002 Repl. Vol.) § 5-113(b) of the Courts
     and Judicial Proceedings Article.

     The wrongful death action is not barred by limitations
     because the cause of action did not accrue until the
     beneficiaries acquired such knowledge. The beneficiaries’
     knowledge that the decedent had mesothelioma, standing
     alone, was not sufficient for inquiry notice. See Md. Code
     (1974, 2002 Repl. Vol.) § 3-904(g)(2)(ii) of the Courts and
     Judicial Proceedings Article.

     The definition of wrongful act, in the wrongful death
     statute, see Md. Code (1974, 2002 Repl. Vol. ) § 3-901(e) of
     the Courts & Judicial Proceedings Article, is interpreted
     and applied as of the date of death. If a defense exists to
     the decedent’s claim as of that time, there is no wrongful
     act for purposes of the wrongful death statute.
              REPORTED

   IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

               No. 959

        September Term, 2004




ELSIE L. BENJAMIN, Individually, etc.




                 v.




  UNION CARBIDE CORPORATION, et al.




     Murphy, C.J.,
     Hollander,
     Eyler, James R.,


                      JJ.


   Opinion by Eyler, James R., J.


Filed: May 3, 2005
     On March 20, 2003, Elsie L. Benjamin, appellant, as

surviving spouse and on behalf of Robert L. Benjamin II and Carol

Jeffers, surviving children of Robert L. Benjamin, Sr.,1 and as

personal representative of the estate of Robert L. Benjamin, Sr.,

the decedent, filed suit in the Circuit Court for Baltimore City

against various defendants, including Georgia Pacific Corporation

and Union Carbide Corporation, appellees.     In appellant’s

survival2 and wrongful death actions,3 appellant alleged that the

decedent died on May 25, 1997, as a result of contracting

mesothelioma caused by exposure to asbestos containing products

manufactured by the defendants.4     Appellees moved for summary

judgment on the ground that the actions were barred by

limitations.

     Appellant asserted below and continues to assert on appeal

that there is no evidence that the decedent had actual knowledge



     1
     The surviving spouse and children are sometimes referred to
as the beneficiaries, denoting their status as use plaintiffs in
the wrongful death action.
     2
     Md. Code (1974, 2001 Repl. Vol., Supp. 2004), § 7-401(y) of
the Estates & Trusts Article.
     3
     Md. Code (1974, 2002 Repl. Vol.), §§ 3-901 to 3-904 of the
Courts & Judicial Proceedings Article.
     4
      The term mesothelioma generally denotes malignant tumors in
the pleura, the membrane surrounding the lungs. In 1964, studies
confirmed that asbestos exposure is a primary cause of
mesothelioma. Wilson v. John Crane, Inc., 385 Md. 185, ___
(2005)(quoting Owens-Corning Fiberglas Corp. v. Garrett, 343 Md.
500, 506-507 n.2 (1996)).

                               -1-
that his disease was caused by exposure to asbestos, and there is

no evidence that appellant or the decedent’s children had actual

knowledge that the disease was caused by exposure to asbestos,

until late 2001 or early 2002.   Appellant contends that actual

express knowledge of (1) the nature of the disease, (2) exposure

to asbestos, and (3) a causal connection between the disease and

the exposure is necessary for the causes of action to accrue.

Conversely, appellees asserted, and continue to assert, that the

actual express knowledge possessed by the decedent and appellant,

i.e., the diagnosis of mesothelioma, was sufficient to put them

on inquiry notice, no later than the spring of 1997, that the

decedent’s exposure to asbestos was the cause of his

mesothelioma.

     The circuit court entered summary judgment in favor of

appellees.5   The court reasoned that actual express knowledge of

the diagnosis of mesothelioma and asbestos exposure was

sufficient for the causes of action to accrue and concluded that

the actions were barred by limitations.   The court did not

clearly distinguish between the survival and wrongful death

actions in coming to its conclusion.

     As we shall explain, we agree with the circuit court that



     5
     The court granted the motion after a hearing held on April
20, 2004. A motions hearing had been held previously, on
November 25, 2003, but the court declined to grant summary
judgment at that time.

                                 -2-
express knowledge of mesothelioma and asbestos exposure was

sufficient to put the decedent on inquiry notice in his lifetime.

Thus, we shall affirm the judgment with respect to the survival

action.    Contrary to appellant’s contention, express knowledge of

a causal connection was not necessary for inquiry notice.

     Contrary to appellees’ contention, we conclude that express

knowledge of the diagnosis of mesothelioma alone was insufficient

to satisfy, as a matter of law, the inquiry notice requirement.

Because there is no evidence that the express knowledge of

appellant or that of the surviving children was more than the

diagnosis of mesothelioma, we shall reverse the judgment with

respect to the wrongful death action.

                          Factual Background

     In the complaint and in answers to interrogatories,

appellant asserted that the decedent was employed as a laborer

and carpenter while (1) in the United States Navy from 1943 to

1945, (2) working for the L.H. Benjamin Co. from 1946 to 1961,

and (3) working for the R.L. Benjamin Lumber Co. from 1961 to

1971.     According to appellant, the decedent was exposed to

asbestos containing products at various times throughout his

employment, including while working for the Benjamin companies,

which stocked and sold several products containing asbestos.    The

decedent was diagnosed with mesothelioma in early 1997, and he

died on May 25, 1997.


                                  -3-
     Summary of medical reports, depositions, and affidavits

     A medical report, dated January 27, 1997, indicates that the

decedent was referred to Dr. M. Jesada because of an abnormal

chest x-ray and CAT scan.   The report states that the decedent

had periodic chest x-rays prior to December 1996, which were

normal.   As a result of a fall in November 1996, the decedent had

various tests.   The test included a chest X-ray, which was

abnormal, and which was followed by a CAT scan, which was

abnormal.   According to the report, the decedent advised the

physician that he had a history of asbestos exposure.   Dr.

Jesada’s impression was possible mesothelioma, and a biopsy was

recommended.

     Records from Harford Memorial Hospital reveal that the

decedent was admitted on February 7, 1997, for a biopsy.    An

oncology report dated February 28, 1997, by Dr. Promila Suri,

reflects a diagnosis of probable mesothelioma.   The report

indicates that the decedent stated that he had a history of

exposure to asbestos in the workplace.

     A report dated March 4, 1997, by Dr. Viroon Donavanik,

indicates that the decedent was admitted to the Medical Center of

Delaware on March 4.   The report contains a confirmation of a

diagnosis of mesothelioma and a recommendation that decedent be

treated with radiation and chemotherapy.   The report again

reveals that the decedent disclosed a history of asbestos


                                -4-
exposure while working in a machine shop.    The report further

noted that decedent worked in the roofing and siding business.

     Appellant, in her affidavit, stated that she routinely

attended medical appointments with the decedent in the spring of

1997, and neither she nor the decedent was informed of the causal

connection between asbestos exposure and mesothelioma.    Appellant

stated that she first learned of the connection in 2002, when her

daughter read an advertisement which referenced the connection

and told appellant about it.    Appellant testified that she never

made any inquiries about the cause of mesothelioma prior to that

time.

     At the first motions hearing held on November 25, 2003, the

court denied appellees’ motion for summary judgment without

prejudice, stating:    ”Well . . . I think the motion may be

premature.   And the reason I say that is that Mrs. Benjamin has

not been deposed, and I gathered that from reading the papers,

and I think that that ought to be done, because I don’t want to

make a decision in this case based upon an affidavit.”    Following

the hearing, appellant was deposed on December 23, 2003.    The

pertinent testimony is as follows:

                Q. Do you remember your husband
                telling Dr. Jesada that he had some
                exposure to asbestos in the past?

                A.    No.

                Q. And you can’t pinpoint one way
                or the other whether you were with

                                 -5-
your husband on January 27th, 1997
for that exam?

A.   I can’t remember the date.

*     *    *       *         *   *   *

Q. I’m going to show you a report
from Dr. Suri dated February 28th,
1997. Do you recall whether you
were with your husband on February
28th, 1997 when he went to see Dr.
Suri?

A. I was with him almost every
time – as far as I know, every time
he saw her.

Q. I’m going to show you the
report, but there’s some reference
in the report to your husband being
exposed to asbestos when he was a
carpenter. Do you remember at any
time when you went to see Dr. Suri
your husband ever making any
mention of the fact that he had
been exposed to asbestos while he
was working as a carpenter?

A.   I do not remember.

*     *    *       *         *   *   *

Q. Did there come a time when your
husband, as a result of his cancer,
went to the Medical Center of
Delaware?

A. That’s where he got the
radiation treatments.

*     *    *       *         *   *   *

Q. Did you accompany him to the
Medical Center of Delaware –

A.   Yes, I did.


                       -6-
Q.   –for his radiation?

A.   Yes.

Q. And there was one time when you
didn’t go because of the ice?

A. He went, but I didn’t drive
him.

Q. Do you know whether you
accompanied him on March 4, 1997?

A.   I don’t know.

Q. I’m going to show you a report
dated March 4th, 1997 from Viroon
Donavanik.

*     *     *   *         *   *   *

Q. Do you know whether you
accompanied your husband on that
date to the medical center?

A.   I don’t know.

Q. And the report, and I’ve
highlighted it, again makes
reference to his being exposed to
asbestos. Do you know whether
during a visit to the Medical
Center of Delaware your husband
ever told the doctors there that he
had been exposed to asbestos?

A.   I don’t know.

*     *     *   *         *   *   *

Q. Do you remember [the decedent]
mentioning to the people at Union
Hospital anything about asbestos
exposure?

A.   No.

Q.   Now, you mentioned that you

                    -7-
think you were present when Dr.
Jesada told your husband that he
had lung cancer, correct?

A.   I was.

Q. Did your husband ask what
caused his lung cancer?

A.   No.

*     *       *   *         *   *   *

Q. And you don’t recall your
husband ever asking Dr. Jesada,
hey, what could have caused this
cancer?

A.   No, I don’t.

Q. Did you and your husband ever
discuss as between the two of you
what possibly could have caused his
cancer?

A.   No.

*     *       *   *         *   *   *

Q. When you accompanied your
husband to see Dr. Suri, do you
remember you or your husband ever
asking Dr. Suri what may have
caused his cancer?

A.   Well, it was discussed.

Q. Tell me what was discussed with
Dr. Suri regarding the cause of his
cancer.

A. I remember her saying she had
only had one other case of this
type of cancer, it was a woman and
she died. Now, that’s what I
remember of that conversation. We
were pretty much upset.


                      -8-
Q. Sure. Any other discussions
that you can recall with Dr. Suri
by either you or your husband
regarding the cause of your
husband’s cancer?

A. No, I don’t remember.
 Q. When did you become aware of
the name of the cancer that your
husband had?

  A. Well, I saw it on the death
certificate and that might be when.

*     *    *    *         *   *   *

Q. Did you have any discussions
with any family members as to what
may have caused his cancer . . .
any discussions as to what could
have caused it?

A.   No.

*     *    *    *         *   *   *

Q. Did you ever, subsequent to
your husband’s death and prior to
coming to this law firm, ever ask
to see any of your husband’s
medical records?

A.   No.

Q. Did you have in your possession
prior to coming to this office any
of your husband’s medical records?

A. After he died, the VA Hospital,
one of my neighbors worked in the
X-ray department and he brought the
X-rays home and said destroy them.
I thought that was unusual, but I
did it.

*     *    *    *         *   *   *

Q.   Other than those X-rays, did

                    -9-
                you ever have any other medical
                records relating to your husband’s
                cancer?

                A.   None.

     Significantly, not only is there no evidence that appellant

had express knowledge of a causal connection between mesothelioma

and asbestos, there is no evidence that appellant had express

knowledge that the decedent had been exposed to asbestos during

his lifetime or at any time prior to 2002.

     Robert L. Benjamin, II, testified in deposition that he had

no knowledge of the connection between asbestos exposure and

mesothelioma until advised by his sister at “the end of 2001,

early 2002.”   He also testified that he knew the decedent had

cancer before death but he did not know it was mesothelioma until

his sister told him in late 2001.        There is no evidence that

Robert L. Benjamin, II had actual knowledge of the decedent’s

exposure to asbestos prior to late 2001.

     There is no evidence that Carol Jeffers had knowledge, until

late in the year of 2001, that the decedent was exposed to

asbestos or that his cancerous condition was caused by such

exposure.   According to appellants, this litigation occurred

after Carol Jeffers read an article in late 2001 or early 2002

about mesothelioma, told her family, and they contacted counsel.

     Appellant also filed an affidavit by John E. Newhagen,

Ph.D., dated December 10, 2003.     At the time, Dr. Newhagen was an


                                  -10-
associate professor at the University of Maryland’s College of

Journalism, and had studied the effectiveness of media

communication methods.   Dr. Newhagen opined6 that it would be

unlikely for an average consumer to have actual knowledge of the

relationship between asbestos exposure and mesothelioma prior to

1997.

     We will mention another aspect of the affidavit and its

attachment, however, without going into detail.   The attachment

explains that a search of the Baltimore Sun’s archive from 1990

forward revealed 72 stories discussing mesothelioma.     All 72

mentioned a link between asbestos exposure and health risks.       The

attachment also observes that there is very little archived

material available relating to coverage by local television,

radio, or local newspapers.   The affiant observed, however, that

such coverage would tend to follow the agenda set by the

Baltimore Sun, the dominant daily newspaper in the market.        We

see no need to summarize the affidavit in greater detail because

appellant does not argue that the relationship between asbestos

exposure and mesothelioma was not knowable at or prior to May

1997, if a reasonable investigation had been conducted.



    6
      Attached to the affidavit as Exhibit 2 was Dr. Newhagen’s
paper, entitled “The Likelihood of Reading or Viewing Messages
Containing Information about the Risk of Mesothelioma to Asbestos
Exposure.” It provided an analysis of the prevalence of
information available in the media concerning the possible link
between asbestos exposure and mesothelioma.

                                -11-
Appellant’s sole argument is that neither she, the other

beneficiaries, nor the decedent had sufficient actual knowledge

to place them on inquiry notice so as to charge them with the

knowledge that a reasonable investigation would have revealed.

                               Discussion

                        I.   Standard of Review

     We review an order granting summary judgment de novo.       Beyer

v. Morgan State Univ., 369 Md. 335, 359 (2002).       Summary judgment

is appropriate when there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a

matter of law.   Maryland Rule 2-501.       The purpose of the summary

judgment procedure is to allow the court to decide whether there

is an issue of fact sufficiently material to be tried, not to try

the case or to resolve factual disputes.        Hartford Ins. Co. v.

Manor Inn of Bethesda, Inc., 335 Md. 135, 144 (1994).       A material

fact is a fact that, depending on how it is decided by the trier

of fact, will affect the outcome of the case.        Mandl v. Bailey,

159 Md. App. 64, 82 (2004) (citing Arroyo v. Bd. of Educ. of

Howard County, 381 Md. 646, 654 (2004)).

     Thus, an appellate court’s review of the grant of summary

judgment involves the determination of whether a dispute of

material fact exists.    Hartford, 335 Md. at 144.     In so doing, we

construe the facts properly before the court, and any reasonable

inferences that may be drawn from them, in a light most favorable


                                  -12-
to the non-moving party.    Remsburg v. Montgomery, 376 Md. 568,

579-80 (2003) (citing Todd v. MTA, 373 Md. 149, 154-55 (2003)).

If the record reveals that there are material facts in dispute,

summary judgment is not appropriate.     Horst v. Kraft, 247 Md.

455, 459 (1967); Lawless v. Merrick, 227 Md. 65, 70 (1961).

                            II.   Analysis

                           A.   Wrongful act

     Preliminarily, before addressing the limitations issues, we

shall address the meaning of “wrongful act,” as defined in the

wrongful death statute.    While that issue was not expressly

raised by the parties, we address it because we cannot reach a

conclusion herein without ascribing a certain meaning to

“wrongful act.”   Thus, we shall expressly address that meaning.

     At early common law, negligence actions seeking compensation

for personal injuries abated at the death of the injured person,

whether the action was pending at the time of death or had not

yet been filed.   Statutes were enacted in England and in various

states, including Maryland.     The early statutes, enacted prior to

the nineteenth century, addressed actions pending at the time of

the injured person’s death and provided that such actions, with

certain exceptions, would not abate.

     In 1888, Maryland first enacted a statute, which not only

prevented a pending action from abating, but also empowered the

decedent’s representative to commence an action subsequent to


                                  -13-
death.     This statute expressly included actions for damages for

personal injuries caused by a wrongdoer.         This statute was the

forerunner to the present survival statute.         Md. Code (2001 Repl.

Vol.), § 7-401(y) of the Estates & Trusts Article.

     Prior to 1852, under the common law, there was no cause of

action or recovery “for . . . loss suffered by a relative of one

killed by the negligence of another.”         McKeon v. State for Use of

Conrad, 211 Md. 437, 442 (1956).         In 1852, however, the

legislature, “finding the common-law maxim, ‘[p]ersonal actions

die with the person,’ unsuited to the circumstances and condition

of the people,” B. & O. R.R. Co. v. Coughlan, 24 Md. 84, 100

(1865), enacted Ch. 299 of the Acts of 1852, which was “almost a

literal transcript of Lord Campbell’s act.7”        Stewart v. United

Electric Light & Power Co., 104 Md. 332, 334 (1906).         The act,

entitled “[a]n act to compensate the families of persons killed

by the wrongful act, neglect, or default of another person,”            B.

& O. R.R. Co., 24 Md. at 100, gave a right of action “under

certain conditions to designated relatives of a deceased person.

. . when death has been caused by a wrongful act or by

negligence.”     Stewart, 104 Md. at 334.      Maryland’s current

wrongful death statute was derived from the Acts of 1852.8


     7
         St. 9 & 10 Vict. c. 93 (1846).
     8
     Aside from changes in language, few changes have been made
to the original act which stated in part:


                                  -14-
     Under the current statute, in order for a beneficiary to

maintain an action for wrongful death, there must have been a

“wrongful act,” defined by   Md. Code (1974, 2002 Repl. Vol.), §

3-901 (e) of the Courts & Judicial Proceedings Article, as “an

act, neglect, or default including a felonious act which would

have entitled the party injured to maintain an action and recover

damages if death had not ensued.”      (Emphasis added.)

     We interpret the definition as meaning that the decedent

must have been able to maintain a compensable action as of the

time of death.   In other words, in order for an act to be

wrongful, the decedent must have had a compensable action as of

death.   The definition does not expressly address the question of

the effect on a wrongful death action of any defenses to the

decedent’s action that arise after death.     We reach this

conclusion for the following reasons.

     First, our reading is consistent with the statutory



          Whenever the death of a person shall be
          caused by wrongful act, neglect or default,
          and the act, neglect or default is such as
          would (if death had not ensued) have entitled
          the party injured to maintain an action and
          recover damages in respect thereof, the
          person who would have been liable if death
          had not ensued shall be liable to an action
          for damages, notwithstanding the death of the
          person injured, and although the death shall
          have been caused under such circumstances as
          amount in law to felony.

Stewart, 104 Md. at 338.

                                -15-
language, history, and purpose of legislation addressing survival

and wrongful death actions.    In both instances, the purpose of

legislation was and is to provide for compensation following the

death of the injured person.   The focus was and is on the

occurrence of death.   The purpose of the survival statute was to

prevent a viable action from abating, not to create a nonviable

action.   The definition of wrongful act in the wrongful death

statute is consistent with the survival statute, in that if a

defense existed to the decedent’s action prior to death, there

was no viable action to abate and, similarly, no wrongful act for

wrongful death purposes.

     Second, we rely on language in prior cases.   While we have

discovered no case that has expressly addressed the issue before

us, i.e., the effect on a wrongful death action of a defense to a

survival action that arises after death, Maryland Courts have

addressed the effect of a defense that arises before death.

     The Court of Appeals has stated “that defenses which would

have been good against the decedent, had the decedent survived,

are good against the decedent’s personal representative and, in

their capacity as Lord Campbell’s Act claimants, the decedent’s

survivors.”   Smith v. Gross, 319 Md. 138, 144 (1990).   The

wrongful act definition has been held to prevent post-death

actions in cases of contributory negligence, see McQuay v.

Schertle, 126 Md. App. 566 (1999) (holding that, if the decedent


                                 -16-
had been contributorily negligent, the right of her children to

recover for her wrongful death would for that reason have been

barred); assumption of the risk, see Baltimore & Potomac R.R. v.

State, Use of Abbott, 75 Md. 152 (1892); under family immunity

doctrines, see Smith v. Gross, 319 Md. 138 (1990) (holding that a

wrongful death action brought by the mother for the death of her

son caused by the negligence of father was barred because a suit

by the son, had he survived, would have been barred by parent-

child immunity); and prior release or adjudication of a claim.

State v. United Railways and Electric Company of Baltimore, 121

Md. 457 (1913).   The language in those cases consistently refers

to defenses existing at the time of death.   See also Dehn v.

Edgecombe, 152 Md. App. 657, 696 (2002)(“if a decedent could not

have brought a cause of action for injury at the time of death,

the wrongful death action similarly is precluded”).

     Binnix v. Johns-Manville Products Corp., 593 F.Supp. 1180,

1183 (D. Md. 1984) (applying Maryland law)) is also instructive.

In that case, the defendants argued that the wrongful death

action was barred by limitations because the action accrued when

the decedent was diagnosed with cancer and the action was filed

more than three years after that date.   The Court held that the

wrongful death action did not accrue until death, but also

observed that the fact that the survival action may have been

barred by limitations that ran after death did not bar the


                                -17-
wrongful death action.   Conversely, in Mills v. International

Harvester Co., 554 F.Supp. 611 (D. Md. 1982) (applying Maryland

law), the Court recognized that when the decedent’s cause of

action is time barred at the time of death, the family’s wrongful

death cause of action does not arise.   It does not arise because

there was no wrongful act.

     Although we recognize that these cases are not on point with

respect to the facts before us, the language is consistent with

our conclusion that, in order for a limitations defense to a

survival action to bar a cause of action for wrongful death, the

applicable limitations period must expire before the decedent’s

death.

     Applying these principles to the present case, we conclude

that, had the decedent lived, he would have been able to bring a

personal injury action within 3 years after accrual of his cause

of action.   If the statute of limitations had run on the

decedent’s claim before he died, it would have acted as a defense

to the beneficiaries’ claim.   The decedent discovered his cause

of action in early 1997 and died in May of the same year.

Therefore, the decedent would have “been able to maintain a cause

of action if death had not ensued” because, at the time of his

death, the statute of limitations had not yet run on his claim.

Consequently, the definition of wrongful act does not preclude

the wrongful death claim by the beneficiaries.


                                -18-
              B.   The applicable limitations statutes

     The decedent’s mesothelioma was an occupational disease.

See Md. Code (1974, 2002 Repl. Vol.), § 5-113(a) and § 3-

904(g)(2)(i) of the Courts & Judicial Proceedings Article

(“C.J.”) (occupational disease means a disease caused by exposure

to any toxic substance in a place of employment and contracted

during the course of employment).       Thus, whether the survival

action was timely filed is governed by C.J. § 5-113 (b), which

provides:

            An action for damages arising out of an
            occupational disease shall be filed within 3
            years of the discovery of facts from which it
            was known or reasonably should have been
            known that an occupational disease was the
            proximate cause of death, but in any event
            not later than 10 years from the date of
            death.

     The timeliness of the wrongful death action is governed by

C.J. § 3-904(g)(2)(ii), which provides:

            If an occupational disease was a cause of a
            person’s death, an action shall be filed:

            1. within 10 years of the time of death, or

            2. within 3 years of the date when the cause
            of death was discovered, whichever is the
            shorter.

                       C.   The discovery rule

     The question in this case is when appellant’s causes of

action against the manufacturers of asbestos containing products

accrued.    Usually, when a cause of action accrues is a legal


                                 -19-
question for the court, unless it turns on the resolution of

disputed facts.     Moreland v. Aetna U.S. Healthcare, Inc., 152 Md.

App. 288, 296 (2003).    In tort actions, the general rule is that

a cause of action accrues at the time of the wrong.     Various

exceptions to this rule have been recognized, the notable one in

this case being the discovery rule.

     The discovery rule was first recognized in a medical

malpractice case.     See Hahn v. Claybrook, 130 Md. 179 (1917).

There, the Court held that the cause of action was barred by

limitations, but recognized that the cause of action did not

accrue until an injury was discoverable.    By 1981, the discovery

rule was fully developed, and in Poffenberger v. Risser, 290 Md.

631 (1981), the Court extended its application to all torts.       In

Poffenberger, the Court, discussing the nature of the knowledge

necessary for a cause of action to accrue, stated:

          This issue posed by builder Risser causes us
          to focus on the nature of the knowledge
          necessary, under the discovery rule, to start
          the running of the limitations period. With
          respect to the acquisition of knowledge,
          Judge McSherry in speaking for this Court
          nearly a century ago said:

                  Notice is of two kinds – actual and
                  constructive. Actual notice may be
                  either express or implied. If the
                  one, it is established by direct
                  evidence, if the other by the proof
                  of circumstances from which it is
                  inferable as a fact. Constructive
                  notice is, on the other hand always
                  a presumption of law. Express
                  notice embraces not only knowledge,

                                  -20-
     but also that which is communicated
     by direct information, either
     written or oral, from those who are
     cognizant of the fact communicated.
     Implied notice, which is equally
     actual notice, arises where the
     party to be charged is shown to
     have had knowledge of such facts
     and circumstances as would lead
     him, by the exercise of due
     diligence, to a knowledge of the
     principal fact . . . . It is
     simply circumstantial evidence from
     which notice may be inferred. It
     differs from constructive notice,
     with which it is frequently
     confounded, and which it greatly
     resembles, in respect to the
     character of the inference upon
     which it rests; constructive notice
     being the creature of the positive
     law, resting upon strictly legal
     presumptions which are not allowed
     to be controverted, whilst implied
     notice arises from inference of
     fact. [Baltimore v. Whittington, 78
     Md. 231, 235-36, 27 A. 984, 985
     (1893). (Authorities omitted).]

As the knowledge imputed by the just defined
constructive notice, if deemed to be
sufficient to activate the running of
limitations, would recreate the very inequity
the discovery rule was designed to eradicate,
we now hold this type of exposure does not
constitute the requisite knowledge within the
meaning of the rule. Affirmatively speaking,
we determine the discovery rule contemplates
actual knowledge that is express cognition,
or awareness implied from

     knowledge of circumstances which
     ought to have put a person of
     ordinary prudence on inquiry [thus
     charging the individual] with
     notice of all facts which such an
     investigation would in all
     probability have disclosed if it

                     -21-
                  had been properly pursued. Baynard
                  v. Norris, 5 Gill. 468, 483, 46 Am.
                  647; Higgins v. Lodge, 68 Md. 229,
                  235, 11 A. 846, 6 Am. St. Rep. 437.
                  In other words, a purchaser cannot
                  fail to investigate when the
                  propriety of the investigation is
                  naturally suggested by
                  circumstances known to him; and if
                  he neglects to make such inquiry,
                  he will be held guilty of bad faith
                  and must suffer from his neglect.
                  [Fertitta v. Bay Shore Dev. Corp.,
                  252 Md. 393, 402, 250 A.2d 69, 75
                  (1969), quoting Blondell v.
                  Turover, 195 Md. 251, 257, 72 A.2d
                  697, 699 (1950).]

Id. at 636-638.

     In short, constructive knowledge, based on legal

presumptions, will not suffice.     Actual knowledge may be express,

based on direct evidence, or implied, based on circumstantial

evidence.   Putting aside, for the moment, any discussion of who

comes within the term “claimant,” as used in this sentence,

application of the discovery rule involves two sub-questions: (1)

the sufficiency of the actual knowledge to put the claimant on

inquiry notice, and (2) if put on inquiry notice, the sufficiency

of the knowledge that would have resulted from a reasonable

investigation, i.e., the extent of information that was knowable.

     In product liability actions, at least such actions that do

not involve a latent disease, if not in all personal injury tort

actions, the case law appears to provide a reasonably clear

answer to the second question.     The answer, as discussed below,


                                  -22-
is that a reasonably diligent inquiry must disclose probable

manufacturing wrongdoing or product defect that probably caused

the injury.   Pennwalt Corp. v. Nasios, 314 Md. 433 (1988).       In

the case before us, the question is the nature and extent of

actual knowledge necessary to cause an inquiry to be made, i.e.,

the first prong of the discovery rule.     Appellant acknowledges

that if there was sufficient actual knowledge to cause inquiry,

a reasonably diligent inquiry would have disclosed a causal

connection between mesothelioma and asbestos exposure and

probable manufacturing wrongdoing, thus satisfying the second

prong.

         1.   Product liability cases: non-latent disease

     In Lutheran Hospital v. Levy, 60 Md. App. 227 (1984), the

plaintiff was treated for a broken ankle.     Subsequently, a

physician told the plaintiff the ankle was “messed up” and asked

her who told her to walk on it.     The court applied the first

prong of the discovery analysis and held, as a matter of law,

that the plaintiff was on inquiry notice when she was advised her

ankle was “messed up.”   At that time, she was required to conduct

an investigation to determine if she had a tort claim against her

treating physician, and she was charged with the information that

would have been disclosed by such an investigation.

     In Baysinger v. Schmid Prod. Co., 307 Md. 361 (1986), a case

relied on by appellant, the plaintiff had an intrauterine device


                                  -23-
inserted and then removed when she experienced problems. In 1979,

the plaintiff questioned her physicians as to whether the device

had caused her problems.     The physicians stated they could not

connect it.     Four years later, the plaintiff obtained information

linking the device with her illness and filed suit.

        Appellant relies on Baysinger for the proposition that the

Court held that the plaintiff was not on inquiry notice as a

matter of law and argues that the decedent and she had even less

notice than the plaintiff in Baysinger.     We disagree.   Baysinger

was actually decided under the second prong of the discovery

rule.     The Baysinger plaintiff, in fact, conducted an inquiry.

The Court held that it was a fact question as to what a

reasonable investigation would have disclosed.    The basis for the

holding was that the plaintiff’s inquiry resulted in her being

advised that the device could not be related to her injury; thus,

she did not suspect any wrongdoing at that time, and a reasonable

inquiry would not necessarily have resulted in knowledge of

causal connection and wrongdoing.

     In Pennwalt, supra, the Court answered a certified question

from the United States District Court for the District of

Maryland.     The question arose out of a medical products liability

action in which the plaintiff, who had received an anesthetic,

sued the manufacturer of the anesthetic.    The question, as posed

by the District Court, was whether, under the discovery rule,


                                  -24-
knowledge of the manufacturer’s wrongdoing or product defect was

required, in addition to knowledge of possible causation, to

trigger the statute of limitations.      The Court of Appeals stated

that the cause of action accrued when the plaintiff knew or

should have known of probable manufacturing wrongdoing or product

defect, which probably caused an injury.      The Court explained

that this required actual knowledge, express or implied, but the

explanation related to the second prong of the discovery rule,

i.e., the nature and extent of the information that must be

knowable.   With respect to the first prong, the Court stated only

that an investigation should be pursued when a person is aware of

facts sufficient to cause a reasonable person to investigate.

The case does not describe how to determine the sufficiency of

the actual knowledge to cause a reasonable person to investigate,

i.e., put a claimant on inquiry notice.

                     2.   Latent disease cases

     Harig v. Johns Manville, 284 Md. 70 (1978), decided before

Poffenberger, involved a living plaintiff with a latent disease,

specifically, mesothelioma.   The Court answered a question

certified by the United States District Court for the District of

Maryland.   The Court advised that the cause of action accrued

when the plaintiff discovered or should have discovered the

“nature and cause of his injury.”      Again, the Court did not

discuss how to determine the sufficiency of knowledge necessary


                                -25-
for inquiry notice and, specifically, whether knowledge of the

existence of mesothelioma was sufficient, or whether something

more was required.

     In 1983, the Court decided Pierce v. Johns Manville, 296 Md.

656 (1983).   In that case, the plaintiff contracted asbestosis on

of before early 1970.     Several years later, the plaintiff

contracted lung cancer.     The Court held that asbestosis and lung

cancer were two different diseases, and the cause of action for

lung cancer did not accrue until the plaintiff knew or should

have known he had lung cancer.     Again, inquiry notice was not the

issue, and the case is not dispositive with respect to whether

knowledge of lung cancer, standing alone, would be sufficient to

cause inquiry.   The decision in Smith v. Bethlehem Steel, 303 Md.

213 (1985), is similar to Pierce, except that the plaintiff was

diagnosed with colon cancer following a diagnosis of asbestosis.

                     3.   Latent disease:   death

     In Trimper v. Porter Hayden, 305 Md. 31 (1985), the

plaintiff died from asbestos related diseases.      Under the then

existing wrongful death statute, later amended, the Court held

that the discovery rule did not apply to wrongful death actions.

Under the then existing general statute of limitations, prior to

enactment of section 5-113 (b), the occupational disease

provision quoted above, the Court applied the discovery rule to

the survival action, in part, and held that the cause of action


                                  -26-
accrued when the “injured” person knew or should have known “the

nature and cause” of the injury or at death, whichever first

occurred.    Id. at 52.

     Trimper makes it clear that the limitations/repose

provision in the wrongful death statute governs wrongful death

actions, and the general statute of limitations governs survival

actions.    305 Md. at 34.9   Again, Trimper discusses the second

prong of the discovery rule and indicates that the knowledge that

a reasonable investigation would disclose is probably not

sufficient if it would show only injury.     A reasonable

investigation must disclose something to indicate that there is a

cause of action.    Also as mentioned previously, this is not the

determinative issue in the case before us because appellant made

no inquiry whatsoever and a reasonable inquiry, had one been

made, clearly would have disclosed a causal connection and cause

of action.    The issue in the present case is whether the actual

knowledge shown is sufficient for inquiry notice purposes.

     The legislature reacted to the Trimper decision, and in

1986, it enacted section 3-904(g)(2), supra.     1986 Laws of

Maryland chapter 374.     In 1987, the 5-year period that was in the

original enactment was changed to the current 10 years.     1987

Laws of Maryland, chapter 629.     Also in 1987, the legislature


     9
      Stated more properly, the provision in section 3-904(g) is
a condition precedent to suit, not a statute of limitations.
Waddell v. Kirkpatrick, 331 Md. 52, 57 (1993).

                                  -27-
enacted section 5-113, supra.   1987 Laws of Maryland, chapter

624.   In 1988, the enactment was amended to add § (c), defining

proximate cause.   While the language in the two limitations/

repose provisions is not the same, i.e., section 5-113 (b)

provides that a claim has to be “filed within 3 years of the

discovery of facts from which it was known or reasonably should

have been known that an occupational disease was the proximate

cause of death,” and section 3-904 (g) (2) (ii) (2) provides that

a claim has to be filed “[w]ithin 3 years of the date when the

cause of death was discovered,” we conclude that, in each

instance, the legislature incorporated the discovery rule as

judicially developed.    We have not had occasion to interpret the

statutes in question before, but we have interpreted analogous

statutes.

       In Workers’ Compensation law, the statute of limitations

applicable to occupational disease claims differs from that

applicable to accidental injuries.      The occupational disease

provision provides, in pertinent part, that a claim has to be

filed within 3 years after the date the employee “had actual

knowledge that the disablement was caused by the employment.”

Md. Code (1991, 1999 Repl. Vol., 2004 Supp.), § 9-711 of the

Labor and Employment Article.    In Tru-Rol Co. Inc. v. Yox, 149

Md. App. 707 (2003), we applied the inquiry notice rule in that

context.    Id. at 719-720 (when claimant consulted physician and


                                 -28-
was told he needed a hearing aid and claimant indicated he

thought hearing problems were related to employment, claimant was

on inquiry notice and required to conduct a reasonable

investigation).

     In medical malpractice cases, limitations/repose is governed

by C.J. § 5-109.    That section provides:

                  Suits against health care providers

                  (a) An action for damages for an
                  injury arising out of the rendering
                  or failure to render professional
                  services by a health care provider
                  . . . shall be filed within the
                  earlier of:

                       (1) Five years of the time the
                       injury was committed; or

                       (2) Three years of the date
                       the injury was discovered.

(Emphasis added.)

     While application of the statute turns on “injury” and not

“death,” both statutes are similar in that they contain the

phrase “was discovered.”     As discussed above, the judicially

developed discovery rule has long been applicable to claims for

medical malpractice.     In Jacobs v. Flynn, 131 Md. App. 342, 361

(2000), we applied the language of section 5-109 in a medical

malpractice case, concluding that

                  [a] claimant will be charged with
                  notice, and the statute will begin
                  to run when:

                  knowledge of circumstances which

                                  -29-
                ought to have put a person of
                ordinary prudence on inquiry [thus,
                charging the individual] with
                notice of all facts which such an
                investigation would in all
                probability have disclosed if it
                had been properly pursued.
                (citations omitted).

                This aspect of limitations law is
                known as the discovery rule.
                (citations omitted). It applies in
                medical malpractice actions as well
                as other negligence suits.
                (citations omitted).

Id.   See also Piselli v. 75th Street Medical, 371 Md. 188, 203

(2002) (“[W]e fully agree with the United States Court of Appeals

for the Fourth Circuit that the unambiguous language of § 5-

109(a)(2) does embody the traditional Maryland ‘discovery rule’

as set forth in our cases.”) (citations omitted))); Edmonds v.

Cytology Services of Maryland, Inc., 111 Md. App. 233, 244

(1996), aff’d sub nom, Rivera v. Edmonds, 347 Md. 208 (1997) (“We

have interpreted C.J. § 5-109 (a) (2) to provide the plaintiff

with three years from the date the wrong was discovered or

reasonably should have been discovered.”) (citations omitted)

(emphasis added))).

      Thus, in the absence of any other applicable language in the

statute, and with the longstanding application of the discovery

rule to medical malpractice claims, we interpreted the phrase

“was discovered,” in section 5-109, to mean the judicially

developed discovery rule.   By analogy, therefore, we interpret


                                -30-
identical language in the wrongful death statute as having

incorporated the discovery rule.

                        D.   The present case

     The court, in its opinion and order dated June 17, 2004,

reasoned that

                the fact that a plaintiff tells his
                physicians that he was exposed to
                asbestos when diagnosed with
                mesothelioma is prima facie
                evidence for plaintiffs to be on
                inquiry notice. When a patient
                volunteers information about his
                condition there can be no
                explanation other than he believes
                it is significant. The proffered
                facts may or may not be relevant to
                the patient’s disease – but he has
                a duty to investigate.

                Here, Plaintiffs knew Mr. Benjamin
                was diagnosed with mesothelioma;
                they knew Mr. Benjamin was exposed
                to asbestos; they conveyed this
                information to his various doctors
                during the course of his treatment;
                and yet they chose to do nothing
                with this information.

     It is not clear whether the court imputed or otherwise

attributed the decedent’s knowledge to all plaintiffs or whether

the court believed that the decedent’s actual knowledge and the

plaintiffs’ actual knowledge were the same or, in each case,

factually sufficient.   In any event, in determining whether

summary judgment was appropriate as to all claims, it is

essential to take into account that the wrongful death action and

the survival action are two distinct causes of action, each with

                                 -31-
a different plaintiff(s).   Thus, the identity of the claimant

must be taken into account when assessing the knowledge required

for inquiry notice.

              1.   Whose knowledge is determinative?

     Although the governing statutes are written in the passive

voice, and do not identify who must discover, or who knew or

should have known of, the existence of the cause of action such

that the inquiry notice prong has been satisfied, case law in

Maryland regarding wrongful death actions, survival actions, and

medical malpractice actions speak generally in terms of a

“claimant,” an “injured” person, or a “plaintiff.”     See, e.g.,

Eagan v. Calhoun, 347 Md. 72, 82 (1997) (“It follows from the

fact that the action is a personal one to the claimant that the

claimant is ordinarily subject to any defense that is applicable

to him or her, whether or not it would have been applicable to

the decedent.”); Geisz v. Greater Baltimore Medical Center, 313

Md. 301, 307 (1988) (“[Plaintiff] contends that she did not

‘discover’ the causes of action until she read a newspaper

article describing one or more malpractice actions filed against

[the defendant] and that discovery is the sole manner in which

this survival claim can accrue.”); Trimper v. Porter-Hayden, 305

Md. 31, 52 (1985) (“[I]n situations involving the latent

development of disease, any cause of action of the injured person

accrues either (1) when he ascertains, or through the exercise of


                                -32-
reasonable care and diligence should have ascertained, the nature

and cause of his injury . . . .”); Young v. Medlantic Laboratory

Partnership, 125 Md. App. 299, 306 (1999)(“Under the discovery

rule, a cause of action accrues (thereby triggering the

limitations period) when the patient discovers or should have

discovered, that he or she has a cause of action.”); Calhoun v.

Eagan, 111 Md. App. 362, 385 (1996), vacated on other grounds,

347 Md. 72 (1997) (“Thus, even though a plaintiff in a wrongful

death action depends, in part, on the rights that the decedent

would have had, the wrongful death action is a personal suit

against the defendant to recover for the claimant’s own

injuries.”).

     We conclude the following.     First, in an action by a living

injured plaintiff, the injured plaintiff is the determinative

person.

     Second, in the event of death and a subsequent survival

action, both the decedent and the personal representative are the

determinative persons.   A survival action is brought by the

personal representative on behalf of the decedent.    Thus, if the

decedent’s knowledge is sufficient for inquiry notice, and the

second prong of the discovery rule is satisfied as well, the

decedent is the determinative person.    If the decedent does not

have knowledge sufficient to satisfy the discovery rule, the

personal representative is the determinative party and must be on


                                  -33-
inquiry notice for the cause of action to accrue.

     Third, in a wrongful death action, if the decedent does not

have knowledge to satisfy the discovery rule, the beneficiaries

are the determinative parties.    In other words, in that

situation, the cause of action does not accrue until the

beneficiaries are on inquiry notice.    In a wrongful death action,

the decedent’s knowledge is not imputed or otherwise charged to

the beneficiary claimants.   We reach this result because of the

difference between a survival action and a wrongful death action.

                    2.   Two causes of action

     In Globe American Casualty Company v. Chung, 76 Md. App. 524

(1988), vacated on other grounds, 322 Md. 713 (1991), Judge

Moylan explained that survival and wrongful death actions are two

separate and distinct claims:

               When a victim dies because of the
               tortious conduct of someone else,
               two entirely different types of
               claim may arise. One is a survival
               action commenced or continued by
               the personal representative of the
               deceased victim, seeking recovery
               for the injuries suffered by the
               victim and prosecuted just as if
               the victim were still alive. It is
               called a ‘survival action’ in the
               sense that the claim has survived
               the death of the claimant. The
               other is a wrongful death action,
               brought by the relatives of the
               victim and seeking recovery for
               their loss by virtue of the
               victim’s death. A deceptive
               similarity inevitably results from
               the prominent common denominator

                                 -34-
               fact that the victim has died. In
               other essential characteristics,
               however, the two types of claim are
               clearly distinct. The first arises
               from the tortious infliction of
               injury upon the victim; the second,
               only from the actual death of the
               victim. In the first, damages are
               measured in terms of harm to the
               victim; in the second, damages are
               measured in terms of harm to others
               from the loss of the victim. In
               the first, the personal
               representative serves as the
               posthumous agent of the victim; in
               the second, his surviving relatives
               do not serve as his agent at all.
               They act in their own behalf.

Id. at 526-27; see Stewart v. United Electric Light & Power Co,

104 Md. 332 (1906).

     The Court continued:

               In a survival action, in contrast
               to a wrongful death action, the
               death of the claimant [the
               decedent] need not have been as a
               result of the tortious injury but
               may have stemmed from a completely
               independent cause.

               *      *     *   *          *   *   *

               Unlike a survival action, a
               wrongful death action arose not
               from the injury but from the death
               of the injured party.

Id. at 535; see Stewart, 104 Md. 332 (1906).

     This rule makes it clear that a survival action is the

decedent’s cause of action brought on his behalf after his death.

In other words, in a survival action, the decedent is the


                                    -35-
claimant, and the personal representative merely his agent.

     For a survival action to lie, there is no requirement that

the injuries sustained by the decedent be the cause of death,

thus, death is irrelevant to the cause of action.     Id.   This

means that, even though the action is brought after death, a

survival action may accrue before the decedent dies because the

claim arises out of personal injuries sustained by the decedent

during his lifetime.   As such, the knowledge of the decedent must

govern inquiry notice.   As stated previously, when the decedent

does not know of the cause of his injury before death, the cause

of action does not accrue until the personal representative,

standing in the shoes of the decedent, is on inquiry notice.

This analysis comports with the holding in Trimper, where the

Court stated:

                [I]n situations involving the
                latent development of disease, any
                cause of action of the injured
                person accrues either (1) when he
                ascertains, or through the exercise
                of reasonable care and diligence
                should have ascertained, the nature
                and cause of his injury, or (2) at
                death, whichever first occurs.

Trimper, 305 Md. at 52 (emphasis added).

     Here, the “injured person” is the decedent, and any cause of

action the decedent may have, including a survival action,

accrues when the discovery rule is satisfied during his lifetime.

Thus, because of the nature of a survival action, knowledge


                                -36-
obtained by the decedent during his lifetime can act to cut short

the decedent’s cause of action after death.

     Conversely, in a wrongful death action, death is essential

to the cause of action.    Id. at 534.    The claim for damages is by

the beneficiaries on their own behalf for damages sustained by

them due to, and following, the decedent’s death.      Thus, the

beneficiaries are the claimants, and it is their knowledge that

must trigger inquiry notice.

     Applying the principles set forth above, we shall now turn

to the issues in the present case.

                          3.   Survival action

     The discovery rule, including the inquiry notice prong, has

to be considered and applied in the context of the facts of a

particular case.    In some instances, the discovery rule may apply

as a matter of law, and in other instances, it may present a fact

question.   In the case before us, we hold that the decedent’s

express knowledge that he had been diagnosed with mesothelioma

and his express knowledge of his workplace exposure to asbestos,

discussed with his physicians, is sufficient, as a matter of law,

to have placed the decedent on inquiry notice during his

lifetime.   It is not necessary to show express knowledge of a

causal relationship between mesothelioma and asbestos exposure or

manufacturing wrongdoing to satisfy the first prong of the

discovery rule.    We reach this decision because, based on the


                                   -37-
state of general knowledge of occupational diseases and asbestos

exposure in 1997, a reasonable person with the decedent’s actual

knowledge would have conducted an inquiry.

     The second prong is not at issue, but as previously stated,

a reasonable investigation would have disclosed a causal

connection and possible causes of action.     The relationship

between asbestos exposure and mesothelioma has been reported for

many years.   All of the facts necessary to make a claim were in

existence at the time of the diagnosis of mesothelioma, and a

reasonable inquiry would have disclosed a cause of action.

    Thus, the personal representative’s cause of action under the

survival statute is barred by limitations.

                        4.   Wrongful death

    In a footnote, the court stated, “[t]he Court notes that the

record contains an affidavit and testimony of Mrs. Benjamin,

alleging that she accompanied her husband on all his hospital and

doctor visits.”   While it is not clear, it may be that the court

concluded that accompanying the decedent on visits to health care

providers was sufficient to imply knowledge to appellant that

the decedent was exposed to asbestos.   We cannot reach that

conclusion as a matter of law.

     Although we conclude that the decedent was aware of his

asbestos exposure and that he had mesothelioma, and that this was

sufficient to put him on inquiry notice prior to his death and


                                 -38-
bar a survival action on his behalf, it is not dispositive of the

limitations issue as to appellants’ claim for wrongful death.      To

reiterate, wrongful death and survival actions are two separate

and distinct causes of action with two separate and distinct

claimants.    Thus, disposing of one does not automatically act as

a bar to the other.

     Although appellant and the other beneficiaries had express

knowledge, no later than 1997, that the decedent’s death was due

to mesothelioma, we hold that that knowledge alone is

insufficient, as a matter of law, to constitute inquiry notice.

There is no evidence that appellant or the other beneficiaries

had express knowledge of the decedent’s asbestos exposure prior

to late 2001.   We reach this conclusion because, in our view,

the knowledge must be such as to prompt a reasonable person to

inquire as to a possible connection between the injury and

causative factors.    While knowledge of injury or disease alone

may be sufficient, as a matter of law, to satisfy inquiry notice,

ordinarily it is not sufficient.

     The direct evidence of express knowledge in the case before

us is that appellant and the other beneficiaries knew only that

the cause of death was mesothelioma, prior to late 2001.    As

stated above, in a motion for summary judgment, the non-moving

party, here appellant, gets the benefit of all reasonable

inferences.   Consequently, we are unwilling to infer, as a matter


                                 -39-
of law, that appellant knew the decedent was exposed to asbestos

based on her relationship with the decedent and having

accompanied the decedent to health care providers.   Similarly, we

are unwilling to infer that appellant had any knowledge as to the

nature of mesothelioma other than that it was a form of cancer.

Whether such an inference(s) should be drawn, i.e., whether

appellant impliedly had such knowledge, or other knowledge, is a

question for the fact finder.   If the fact finder were to

conclude that appellant had such knowledge sometime prior to

2001, either by drawing a reasonable inference from the testimony

as we know it, or by resolving a credibility determination

against appellant as to what she knew when, the cause of action

accrued as of that time.   Thus, because knowledge of mesothelioma

alone is insufficient for inquiry notice, and on the record

before us, it is a fact question as to whether and when appellant

also had knowledge of decedent’s asbestos exposure, summary

disposition of the wrongful death claim was inappropriate.

     The wrongful death action was brought on behalf of three

beneficiaries.   Only one action lies for wrongful death, C.J.

§ 3-904(f), and damages are divided among the beneficiaries.

C.J. § 3-904(c).   All persons who are or may be entitled by law

to damages shall be named as plaintiffs, whether or not they join

in the action.   Md. Rule 15-1001(b).   In the present case, there

is no evidence that the children of the decedent were on inquiry


                                -40-
notice any earlier than appellant.     At trial, however, the fact

finder might resolve the factual issue     of notice differently as

to each claimant.   For the benefit of the court on remand, we

express our view that the knowledge of each claimant is

determinative as to that claimant.     The knowledge of one claimant

is not imputed to the other claimants.



                                       JUDGMENT AFFIRMED IN PART AND
                                       REVERSED IN PART. CASE
                                       REMANDED TO THE CIRCUIT COURT
                                       FOR BALTIMORE CITY FOR FURTHER
                                       PROCEEDINGS. COSTS TO BE
                                       PAID ONE-HALF BY APPELLANT AND
                                       ONE-HALF BY APPELLEES.




                                -41-

				
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